Basketfield & Kern Electric Railway Co. v. Hay

THE COURT. Prohibition. On the twentieth day of September, 1915, the city council of the city of Bakersfield adopted an ordinance relating to the regulation and control of the operation of automobile buses within that city. Within thirty days thereafter there was filed with the city clerk an instrument protesting against the passage of the ordinance. This protest was signed by 880 electors of the city. The council having declared this protest sufficient to require a referendum vote upon said ordinance, have ordered an election and referendum thereon to be held on the eleventh day of January, 1916. The petitioner claims that the protest is insufficient to authorize such election or to cause a suspension of the ordinance, and in support of this claim alleges that the protest does not contain the names of a sufficient number of electors. The respondents have filed a general demurrer to *291 the petition herein, and it has been stipulated that the case may be disposed of in accordance with our decision upon that demurrer. The present charter of the city of Bakersfield was adopted by the electors of that city at an election held on the seventh day of November, 1914, and, after its approval by the legislature, was filed with the Secretary of State on January 23, 1915. (Stats. 1915, p. 1552.) Section 32 of the charter provides for referendum elections, and it is there required that a petition protesting against the passage of an ordinance must be “signed by electors of the city, equal in number to twenty-five per centum or more, of the entire vote cast at the last general election.” It is further provided that “the council shall submit the ordinance to the electors of the city .either at the next general municipal election, or at a special election, and such ordinance shall not go into effect unless a majority of the electors voting on the same shall vote in favor thereof. The provisions of article VII respecting the forms and conditions of the petition and the mode of verification and certification and filing, and the ballot to be used, shall be substantially followed, with such modifications as the nature of the case may require.” The petitioner contends that the general election referred to in section 32 is the last general state election, and not the last general municipal election. It is conceded that if the required number is to be tested by the vote cast at the last general municipal election, the number of signatures upon the protest was sufficient; and it is shown by appropriate allegation in the petition that the entire vote cast within the city of Bakersfield on the third day of November, 1914, at the general election held on said date, at which a Governor was elected, was 6,046. Section 67 of the charter is in article VII relating to elections, and provides that- within ten days after the charter shall have been ratified by the legislature and the necessary certified copies thereof have been filed and recorded, “the governing body of the city of Bakersfield shall call a nominating election and a general election, under the provisions of this charter, to elect officers as herein provided.” The officers thus elected are to hold office until their successors are elected and qualified; and it is provided that ‘ ‘ a general election shall be held on the second Tuesday of April of the year 1917, and each odd-numbered year thereafter,” etc. *292 Reading together the several sections of the charter which have relation to the question at issue, we are satisfied that the words “general election,” as contained in section 32, are there used in the same sense in which the same words are used in section 67, and that they refer to the last general municipal election. The petition herein directs the court’s attention to the fact that at the nominating election held on April 6, 1915, in the city of Bakersfield, councilmen were elected in three of the seven wards of the city; that (except members of the board of education, as to which the district includes territory outside the city limits), no other officers than councilmen were required to be elected under the provisions of the charter; and that at the so-called general election held on May 7, 1915, no election was held in the said three wards. For this reason petitioner contends that there was no general election. Even if this were conceded, it would not aid the case of petitioner. If no general municipal election was held by the city of Bakersfield since the adoption of this charter, the test would relate back to the last general municipal election preceding the adoption of the charter. Petitioner does not deny that under such test the protest to which this petition refers would be found sufficient. There is a general law entitled “An act to provide for direct legislation by cities and towns, including initiative and referendum.” (Stats. Ex. Sess. 1911, p. 131.) Conceding that that act does not apply to the city of Bakersfield, counsel for petitioner argue that the referendum provisions of the city charter are modeled upon the terms of that statute; and that, notwithstanding some differences between the charter provision and the provisions of the statute, the court should apply the rule that one statute founded upon another is deemed, in so far as it follows the terms of the previous statute, to adopt also its meaning. The statute provides for referendum petitions which shall be signed by qualified electors of the city or town “equal to ten per cent' of the entire vote east therein for all candidates for Governor of the state at the last preceding general election at which a Governor was voted for.” The argument is not convincing. We have no evidence that the referendum provisions of the charter were drawn from those of the statute to which counsel refer; and even if they were so derived, the failure to copy words *293 distinctly defining the last preceding general election as a state election serves to indicate that the charter framers preferred that the protest against the adoption of an ordinance should be signed by at least twenty-five per cent of the number of electors voting at the last general municipal election, rather than that the test should be ten per cent of the entire vote cast at a state election. The demurrer is sustained and the petition for writ of prohibition herein is denied.